On Feb. 4, 2014, Littler attorney Maurice Baskin, representing the Associated Builders and Contractors and the National Association of Manufacturers, told the House Subcommittee on Workforce Protections that OSHA’s interpretation letter changed the rules without any prior public notice. According to the letter, an unspecified number of employees in a nonunion workplace may designate an outside union or community organization as their representative during safety inspections, even though the majority of workers have not authorized the union or other group as their representative for any purpose.

Baskin testified that the letter contradicts the Occupational Safety and Health Act (OSH Act) and the National Labor Relations Act (NLRA). Section 8 of the OSH Act states that a representative of the employer and a representative authorized by the employees may accompany OSHA personnel during workplace inspections. Section 9 of the NLRA states that only a union that a majority of employees have chosen may claim to be an “authorized representative.”

OSHA’s published regulation implementing the OSH Act states:

“The representative authorized by employees shall be an employee of the employer. However if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

By issuing the new interpretation, Baskin argued, OSHA is taking a side in labor-management relations. “By allowing outside union agents and community organizers access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law.”

Employers confronted with an OSHA inspector accompanied by an outside union agent are faced with a Hobson’s choice, Baskin added. “If they object to allowing the third-party agent into their facility, they may rightly fear retaliation by the OSHA inspector. If they allow the third-party outsider into the workplace, then they are giving up their private-property rights and allowing someone into their premises who does not have the company’s best interests at heart and who may actually want to do harm to the company.”

Labor Response

Labor-side attorney Randy Rabinowitz countered that the agency’s longtime practice in nonunion facilities has been to honor the employees’ choice of representative—whether a union representative or some other worker advocate—during an OSHA inspection.

“The [letter of interpretation] simply clarifies this long-standing policy,” she said. She explained that a mix of “nontraditional advocacy groups” may represent workers who do not belong to unions. “Nonemployee representatives can often help OSHA understand the complex employment relationships between staffing agencies, subcontractors and employers. They can help OSHA identify past accidents and common safety hazards. And they can help workers who do not speak English effectively or who are wary of government inspectors to communicate their concerns to OSHA.”

Dangers of Subregulatory Actions

Subcommittee Chairman Tim Walberg, R-Mich., called the hearing on executive overreach to shine a light on what he believes is OSHA’s increasing attempts to “circumvent the public rulemaking process in order to significantly change health and safety standards.”

Walberg claimed that Assistant Secretary of Labor for Occupational Safety and Health David Michaels “openly expressed his frustration with the rules he must follow before imposing new regulations on workplaces. … He has promised to find creative solutions to adopt his policy priorities, and that is precisely what the agency is now doing.”

The Administrative Procedure Act (APA) governs the regulatory process of federal agencies, including OSHA. The law requires those agencies to issue a proposed rule, collect public feedback, and review and respond to comments before issuing a final rule. In addition, OSHA is required to determine that a health and safety risk exists, examine the economic impact of the proposed rule, and evaluate the technical feasibility of compliance.

“These legal guidelines are in place to protect the public against excessive regulations, provide important transparency over the work of federal agencies and ensure the right policies are in place,” said Walberg.

Generally speaking, subregulatory action—including guidance documents like OSHA interpretations, new compliance directives and memorandums to field staff—is anything short of a full regulation, explained Brad Hammock, partner in the Washington, D.C., office of Jackson Lewis and leader of the firm’s workplace safety and health practice group. “Most importantly, OSHA cannot make new policy or create new obligations through guidance, and yet … OSHA has repeatedly crossed that line.

“Subregulatory actions are substantive changes without transparency, input from affected parties or accountability,” Hammock added, noting that, by using this approach, the agency has avoided having to justify its actions, accept public comment, conduct impact analyses or get clearance from the administration that normally serves as a check.

“These are executive dictates,” he said, “which are harder to challenge than regulations,” which is why OSHA is not supposed to create new policy this way.

Representing the U.S. Chamber of Commerce at the hearing, Hammock reiterated Baskin’s concerns about OSHA’s inspection interpretation and then cited other recent initiatives that the agency publicized without following the normal rulemaking procedures:

An October 2010 interpretation of “feasible administrative or engineering controls” under the occupational noise exposure standard. OSHA did not perform an economic analysis of this policy change, and as a result of the subsequent pushback, the proposal was withdrawn months later.

Alternative chemical permissible exposure limits, posted on OSHA’s website in October 2013, that are lower than the official limits.

A December 2013 memo to field staff on enforcing the combustible-dust requirement under the new Globally Harmonized System for Classification and Labeling of Chemicals.

In Defense of OSHA

OSHA’s Michaels rejects the overreach charge and has said, for example, that the agency’s alternative permissible exposure limits are recommendations only and will not be regulated.

Labor attorney Rabinowitz pointed out that OSHA’s interpretations and guidance memos are consistent with the APA’s requirements. “These policies represent long-standing interpretations by OSHA of statutory language, clarify ambiguous regulatory provisions or announce how OSHA will exercise its enforcement discretion. The policies impose no new legal burdens. There is no legal requirement for notice and comment rulemaking.”

She added that most of the interpretations that OSHA issues are requested by, and benefit, business.

“They are a necessary and useful administrative tool,” Rabinowitz insisted. “OSHA’s rulemaking process is now saddled by so many procedural requirements that OSHA is incapable of issuing standards to protect workers in a timely manner. Requiring OSHA to also conduct notice and comment rulemaking for every policy statement or enforcement directive would make an already slow process grind to a halt.”

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